Court of Appeal dismisses rape appeal where re-examination of forensic expert was improper but did not affect conviction.

THE COURT OF APPEAL APPROVED NO REDACTION NEEDED [2025] IECA 252 Record No: 81/2025 McCarthy J. Kennedy J. O’Moore J.

Between/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent/ -AND-

MICHAEL MOLLOY Appellant/

JUDGMENT of the Court delivered by Mr. Justice Brian O’Moore on the 20th day of November 2025.

Introduction

1. Before this Court is an appeal brought by the appellant against his convictions, imposed on him by the Central Criminal Court in respect of:

i. Count 1: Rape contrary to section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1981 as amended by section 21 of the Criminal Law (Rape)(Amendment) Act 1990, ii. Count 2: Rape contrary to section 4 of the Criminal Law (Rape) (Amendment)

Act 1990, and

iii. Count 3: Sexual Assault contrary to section 2 of the Criminal Law (Rape)(Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001.

2. The appellant was arraigned on the 17th of February 2025 where he pleaded not guilty to each count on the indictment.

3. On the 18th of March 2025, the appellant was sentenced by the Central Criminal Court in respect of Bill Number CCDP0154/2023. He was sentenced to six years’ imprisonment on Count 1, six years’ imprisonment on Count 2, and four years’ imprisonment on Count

3. Each of the sentences imposed were to run concurrently as of the date of the conviction. The final year of said sentences of six years imposed in Counts 1 and 2 was suspended for three years on the basis that the appellant keep the peace, remains in good behaviour, and liaise and cooperate with the Probation Service for a period of three years post release. The appellant will be on the Sex Offenders Register on an indefinite basis.

4. The appeal is brought on the grounds that the trial judge erred in law and in fact in permitting the prosecution to ask Dr. John Bermingham (in re-examination) whether the injuries identified by him were consistent with the history given by the injured party of non-consensual sexual activity.

Background to the Appeal

5. The appellant was convicted by the Central Criminal Court of:

i. Count 1: Rape contrary to section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1981 as amended by section 21 of the Criminal Law (Rape)(Amendment) Act 1990. It relates to the appellant, a male person, who between 11pm on the 31st October 2021 and 00:30am on the 1st of November 2021 had sexual intercourse with the victim, a female person, who at the time of the intercourse did not consent to the intercourse and at that time, the appellant knew that the victim did not consent to the intercourse, or was reckless as to whether she did or did not consent to it. ii. Count 2: Rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990. It involved the sexual assault of the victim by the appellant between 11pm on the 31st of October 2021 and 00:30am on the 1st of November 2021, in circumstances where the appellant penetrated the victim’s mouth with his penis.

iii. Count 3: Sexual Assault contrary to section 2 of the Criminal Law (Rape)(Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001. Count 3 on the indictment involved the sexual assault of the victim between 11pm on the 31st of October and 00:30am on the 1st of November 2021, whereby the appellant inserted his fingers into the victim’s vagina.

Factual Background

6. On the 31st of October 2021, the injured party was walking home after socialising with friends when she met the appellant whom she knew to see from attending the same secondary school. He was walking home in the same general direction as her. They began chatting before holding hands. During the encounter, part of which was captured on CCTV, it seems to have been agreed that the appellant would walk the injured party home. As they approached a shortcut to the injured party’s home, the appellant kissed her, and at first, she kissed him back. The injured party then stated that she did not wish to continue as she was aware that the appellant had a girlfriend. The injured party said that the appellant then turned her around with force and pulled down her trousers. The appellant pushed her against a wall and bent her over and penetrated her vaginally with his fingers and then his penis. The injured party then stated that she pushed the appellant away, fell to her knees, and sat on the ground where the appellant stood over her, and forced his penis into her mouth where she then pushed him away and ran from the area to her home. She then phoned her best friend who advised her to sit down and catch her breath and to tell her parents. The injured party’s parents contacted the gardaí. The injured party was taken to the hospital where she was examined by Dr. Bermingham.

7. Dr. Bermingham said that he had been a consultant obstetrician/gynaecologist in that hospital since 2001. He said that he examined the victim at 2.45am on the 1st of November 2021 in the sexual assault treatment unit.

Submissions on Appeal

Appellant’s Submissions

8. The appellant submits that the trial judge erred in permitting the prosecution to ask Dr.

Bermingham in re-examination if the injuries sustained by the victim were consistent with the history given by her of non-consensual sexual activity.

9. On the 19th of February (day three of the trial), the State called Dr. Bermingham to give evidence. He was to give evidence as a sexual assault forensic clinical examiner for the Sexual Assault Treatment Unit in the hospital where the victim was examined.

10. The evidence-in-chief of the doctor concluded with the following exchange (Transcript CCDP0154/2023, 19th February 2025, Page 59, Lines 26-30):

“Q. Now when you take into consider when you take account of the physical examination carried out on [the victim] and the genital examination what---in terms of your findings, are they consistent or inconsistent with the history she gave of what happened.

A. The findings were consistent with what I was told happened”

11. On cross-examination, defence counsel asked the following question (Transcript CCDP0154/2023, 19th February 2025, Day 3, Page 60, Lines 15-22):

“Q. And before I talk about the narrative given, I think that in terms of -- your role is not to provide an opinion or to proffer any opinion upon the issue of consent. That's obviously a matter for the –

A. No.

Q. -- jury?

A. I'm doing forensic –

Q. You're simply to carry out forensic findings?

A. Yes”.

12. On foot of this question, counsel for the State sought to re-examine Dr. Bermingham. On re-examination, the following question was asked (Transcript CCDP0154/2023, 19th February 2025, Day 3, Page 63, Line 7):

“ Q. Now, when -- you told the jury in your examination in chief, in your evidence in chief, that the injuries, the findings you made on physical examination, including vaginal examination, were consistent with the history given. Now, the history given was of nonconsensual activity; isn't that right?

A. Yes.

Q. So, was -- were the findings consistent”

13. Counsel for the defence objected at this point, and submissions were made in the absence of the jury. The trial judge questioned Dr. Bermingham as follows (Transcript 19th February 2025, Page 64, Lines 3-9):

“Q. JUDGE: Are you in a position, from an examination, to say whether something was -- whether there was consent or not consent? In other words, from your physical examination, you can say the physical findings that you find, but does that put you in a position to offer an opinion as to whether someone was consenting or not?

A. WITNESS: All I can say is that the injuries I've seen with consensual activity that have led to trauma are somewhat different from what you'd find here.

JUDGE: Very well. Well, then, that's...”

14. The appellant submits that in objecting to the witness giving his opinion as to the presence of consent, the trial judge responded to defence counsel (at page 65, line 4 of the transcript), that “…you’re the one who raised the issue about opinions”, where it is submitted that no such issue was raised in cross-examination which would justify reexamination. In any event the prosecution was permitted to re-examine, the witness was recalled, and the following evidence was given (Transcript CCDP0154/2023, 19th February 2025, Day 3, Page 65, Lines 12-23).

“Q. Just to be clear, Dr Bermingham. Dr Bermingham, all you can say is whether or not what you found is consistent with -- or not consistent with the history you were given by [the victim]?

A. Correct. Correct.

Q. And she gave you a history of non-consensual sexual activity; isn't that correct?

A. It is, yes.

Q. So, do your findings -- are your findings consistent with –

A. Yes.

Q. -- the history she gave?

A. Yes.

Q. Thank you?

A. Thank you.”

15. Counsel for the appellant contends in their submissions that this re-examination should not have been permitted and that the original question, as set out, was reasonable and proper, but that being called to proffer an opinion or finding on the issue of consent was a matter for the jury and the ultimate issue in the trial.

16. It is submitted by counsel that this was not a situation where the prosecution was legitimately seeking to clarify issues that may have been left in doubt because of questions asked in cross-examination, nor was it a fresh matter that may have been overlooked. It is contended that the trial judge misinterpreted the nature and purpose of the questions posed in cross-examination when addressing the issue in the voir-dire and in permitting the re-examination there was an unwarranted repetition of the doctor’s findings and their purported consistency with the allegations that led inevitably to a disproportionate emphasis of his conclusions. It is submitted that this was a reiteration of expert evidence to reinforce a point rather than a justifiable clarification which may have been conflated with consent in the minds of the jury thereby causing irremediable prejudice for the appellant.

17. As a result, counsel for the appellant respectfully submits individually and/or cumulatively that the convictions should be set aside.

Respondent’s Submissions

18. It is submitted by the respondent that Dr. Bermingham noted an abrasion to the left kneecap and some grit in the natal fold between the buttocks in the physical external examination.

The abrasion on the injured party’s knee was a fresh abrasion (Transcript 19th February 2025, Day 3, Page 56, Lines 10-17).

19. It is submitted by counsel that Dr. Bermingham stated that he carried out a genital examination and found marked tenderness about the labia and around the clitoris. There was a small tear of 2cms on the fourchette, that is at 6 o’clock in the vaginal skin. Dr.

Bermingham said that he found erythema or redness caused by an increased in blood supply after sexual activity, recent vigorous activity (Transcript 19th February 2025, Day 3, Page 58, Lines 1-17).

20. Dr. Bermingham’s final answer in his evidence-in-chief was as follows (Transcript 19th February 2025, Day 3, Page 59, Lines 26-30):

“Q. Now, when you take into consid….when you take account of the physical examination carried out on [the injured party] and the genital examination, what…in terms of your findings, are they consistent or inconsistent with the history she gave of what had happened?

A. The findings were consistent with what I was told happened.”

21. Counsel for the respondent submits that, prior to cross-examining Dr. Bermingham in relation to the description or account given to him by the injured party, the complainant herself was cross-examined about:

i. what the appellant alleged happened on the night; and ii. the account of events she gave to Dr. Bermingham.

22. In relation to what the appellant alleged happened on the night, it was put to the injured party that, when she was talking to the appellant on the walk home, she said to him that she had heard that he had a very small penis and he then offered to show his penis to her to prove her wrong and she then said “Go on then” (Transcript 19th February 2025, Day 3, Page 4, Line 27). The injured party denied that that happened.

23. It was put to the injured party, that the sexual activity was consensual including when she had turned around and the appellant put his fingers in her vagina and, “…at this point then, he attempted to penetrate you by putting his penis in your vagina and you were happy for him to do this…in that you were consenting to this….or a willing participant, but his penis became limp, and he was unable in fact to have sex with you from behind…and that because he was unable to penetrate you or unable to have sex because his penis went limp, he apologised because he could not have sex with you?” (Transcript 19th February 2025, Day 3, Page 24, Lines 12-32). She denied that happened.

24. Counsel for the respondent submits that in relation to the description given by her to Dr.

Bermingham, the defence read out the account given by the injured party to Dr.

Bermingham as set out in his report, in putting to the respondent as follows (Transcript 19th February 2025, Day 3, Lines 11-26):

“Q. Now, in your description to the doctor in the hospital …, you said then

“Next thing he bent me down, pulled down my pants and penetrated me from behind vaginally. After he had penetrated me in and out a few times, he took hold of my waist.

I fell forward, and he asked me to suck him off, he forced me to do it. Penis in my mouth, no cum.”

So, on that account to the doctor, is it the case that in fact, the first thing that happened sexually between you was that he, you are saying that he had sex with you first?

A. No, he penetrated me vaginally with his fingers.

Q. Okay, alright, so just as I am clear on this, the account you gave to the doctor in fact is that you say:

“He penetrated me from behind vaginally. After he had penetrated me in and out a few times, he took hold of my waist.” So, when you were given that description to the doctor, you were talking about digital penetration or with his penis?

A. With his fingers.”

It is submitted that accordingly, the defence raised the issue of the description given by the injured party to Dr. Birmingham, in cross-examination of the complainant.

25. The injured party was also asked as follows (Transcript 19th February 2025, Day 3, Page 28, Lines 11-20):

“Q…. Now, just to come back to where I was a few moments ago, you remember I had suggested to you that what happened was that [the appellant] was unable to perform sexual intercourse, this is what I suggested to you, you disagreed with me on that?

A. Yes.

Q. And I suggested to you that [the appellant] had apologised because he couldn’t have sex with you. And then I had suggested that what happened was …. He asked you not to say anything because he had a girlfriend. Remember that? Remember I put that to you?

A. I remember, yes”,

26. In re-examination of the injured party, she was asked (Transcript 19th February 2025, Day 3, Page 47, Line 29 to Page 48, Line 6):

“Q. [Defence counsel] read out a portion of what you told Dr Bermingham to you and he read out that you had told the doctor ‘After he had me kissing him, next thing he bent down, pulled down my pants and penetrated me from behind vaginally. After he had penetrated me in and out a few times, he took hold of my waist.”

Now, I think that he suggested to you that you had not told Dr Bermingham that [the appellant] had digitally penetrated you, isn’t that right?

A. It is right yes.

Q. But I think, in fairness to you, and there will be evidence from Dr Bermingham, that it’s noted by Dr Bermingham he had touched his hand down the client’s pants and he had digitally penetrated the vagina. So, did you tell Dr Bermingham that [the appellant] had put his fingers in your vagina?

A. Correct.”10

It is submitted by counsel that no issue was taken by defence counsel in relation to any question asked, or answer given, in relation to Dr. Bermingham’s evidence-in-chief.

27. In cross-examination of Dr. Bermingham, it was put to him as follows (Transcript 19th February 2025, Day 3, Page 60, Lines 23-25):

“Q. And in terms of what you had observed, in terms of the consistency, that’s consistent with penile/vaginal activity?

A. Yes.”

28. It is submitted by counsel that up to this point, the appellant had maintained that there had been no penile/ vaginal sexual activity because his penis had been limp and instead, his fingers had penetrated the injured party’s vagina. The description given to Dr. Bermingham was then read out by the defence counsel before the jury, ending with “he had me kissing him, next thing he bent me down, pulled down my pants and penetrated me from behind vaginally”. Dr. Bermingham was then asked as follows (Transcript 19th February 2025, Day 3, Page 61, Line 30-34):

“Q. When that was being described to you, as in, ‘he penetrated me from behind vaginally’, was it your understanding that [the victim] was referring to vaginal sexual intercourse?

A. Penile vaginal, yes.

Q. Penile vaginal intercourse? Okay.”12

29. On re-examination, Dr. Bermingham was asked as follows (Transcript 19th February 2025, Day 3, Page 63, Lines 7-11):

“Q. Now…when you told the jury in your evidence-in-chief that the injuries, the findings you made on physical examination including vaginal were consistent with the history given.

Now, the history given was of non-consensual activity; isn’t that right?

A. Yes.13

30. In the absence of the jury, the trial judge said to counsel for the defence as follows (Transcript 19th February 2025, Day 3, Page 63 Lines 22-27):

“Well, the first question you asked in crossexamination, was when you said consistent, you asked him did that mean it was consistent with penile/vaginal activity. And the prosecution now, arising out of that, want to ask him a question. What question do you wish to ask in front of the jury?

A. I want to ask if it’s consistent with non-consensual sexual activity, that being the history he was given.14

31. The trial judge then asked the witness if he was in a position from the physical findings to offer an opinion as to whether someone was consenting or not. The witness replied (Transcript 19th February 2025, Day 3, Page 64, Lines 7-8):

“All I can say is that the injuries I’ve seen with consensual activity that have led to trauma are somewhat different from what you find here.”15

32. It is submitted by counsel that the trial judge took the view that the doctor’s role as an expert was to give an opinion and his answer on whether or not the injuries he found were consistent or inconsistent with consent, was that it was his opinion that, generally when he examined people, the injuries there would be inconsistent and not what he would expect to see with injuries for consensual sex. Dr. Bermingham was then asked (Transcript 19th February 2025, Day 3, Page 65, Lines 12-19):

“Q. Just to be clear, Dr Bermingham, all you can say is whether or not what you found is consistent with or not consistent with the history you were given by [the victim]?

A. Correct. Correct.

Q. And she gave you a history of non-consensual sexual activity; isn’t that correct?

A. It is, yes.

Q. So, do your findings--- are your findings consistent with… the history she gave?

A. Yes.”16

33. Counsel for the respondent submits that the appellant raises the issue as to whether Dr.

Bermingham should have been permitted by the trial judge to give evidence of his opinion that his findings were consistent with a history of non-consensual sexual activity. It is submitted that there was no error of law or fact by the trial judge, as contended for by the appellant herein. The respondent submits that the prosecution went no further than that Dr.

Bermingham said that his findings were consistent with the history of non-consensual sexual activity given by the respondent. Dr. Bermingham was not asked, and did not give, his own opinion as to whether or not there was consent in this case on the night in question.

The prosecution did not elicit the evidence given by the witness in the voir dire that injuries with consensual activity that led to trauma are somewhat different to the findings in this case.

34. Counsel for the respondent submits that Dr. Bermingham was not told of the different account given by the appellant about what happened. He was not asked for his opinion as to whether or not the injuries were consistent with an account of digital/vaginal penetration as alleged by the appellant, rather than penile/vaginal penetration. An expert witness is permitted by law to testify by way of opinion evidence where there is an issue that calls for specialised knowledge, outside the ordinary experience of the jury as the finder of fact.

35. In this case, the respondent submits that Dr. Bermingham, as a consultant obstetrician/gynaecologist, and a medical practitioner in the sexual assault treatment unit of the hospital, met the formal justification for the admission of the evidence that he gave, that is, that his findings of injuries were consistent with the history or description of events given to him by the injured party, in that:

1. his evidence touched upon a matter beyond ordinary human experience and

2. he possessed specialised knowledge that could assist the jury.

36. The respondent does not dispute that Dr. Bermingham was an appropriate witness to give evidence in relation to a matter at issue in the trial, namely his findings on examination of the injured party within a short period of the alleged offences. It is further not disputed that he was qualified by virtue of training and experience to provide the necessary opinion as to consistency on the part of the injured party in the account given by her.

37. It is submitted by counsel that Dr. Bermingham’s opinion that his findings were consistent with the injured party’s description of what had happened did relate to a disputed matter, that is, the jury had heard different accounts from (i) the injured party and (ii) on behalf of the appellant, of what was alleged to have happened on the night in question.

38. It is respectfully submitted by counsel that Dr. Bermingham’s evidence was presented to the Court as the independent product of an expert, uninfluenced by the content of the trial.

He was not present in Court when the injured party was cross-examined in relation to the appellant’s account of what had happened. Dr. Bermingham provided independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his expertise. It is submitted that he stated the facts or findings upon which his opinion was based.

39. Counsel for the respondent additionally submits that the trial judge referred to the evidence of Dr. Bermingham in his charge to the jury as follows (Transcript 19 February 2025, Day 3, Page 24, Lines 12-34, Page 25, Lines 1-3):

“ …a witness called as an expert witness is entitled to give an opinion, to express an opinion. In this case, you had expert evidence from the doctor from the sexual assault treatment unit….Now, you’re entitled to have regard to that evidence and to the opinion expressed by the expert, but it is not a function of the expert witness to usurp the role of the jury in determining what verdict to return. So, while you can have regard to the opinion of the expert, that’s what they’re here to do, is to give you the benefit of their opinion. You can have regard to that but you’re not obliged to accept it, it’s entirely a matter for yourselves.” (Transcript 24 February 2025, Day 6, Page 55, Lines 13-22).

Court’s Analysis and Decision

40. The difference between the parties became narrower and starker at the hearing of the appeal. In his submissions, counsel for the appellant accepted that the direct evidence of Dr. Bermingham (set out at paragraph 20 of this judgment) did not result from a question to which any objection could have been taken. While counsel also argued that this evidence could not have been understood as referring to the absence of consent on the part of the injured party (as the doctor had given no direct evidence of his report, which set out the injured party’s account of the incident), this is not correct. As counsel for the DPP submitted to us, from page 25 onwards of the transcript for the 19th of February 2025 the account of non-consensual sexual activity given by the complainant to Dr.

Bermingham was put to the injured party by the appellant’s counsel. The jury were therefore well aware, by the time Dr. Bermingham came to give evidence, of the fact that he had been told by the complainant that she had been forced into sexual activity with the appellant. It was in that context that the answer given by the doctor at the end of his direct evidence would have been understood.

41. Given this fact, counsel for the appellant focused his submissions on the repetition (by the doctor) in his re-examination of evidence adverse to the appellant. No authority was presented to us supporting the argument that this would justify setting aside the appellant’s conviction. However, even in the absence of precedent this is a submission that must be considered. In doing so, the first matter to address is whether the impugned question to Dr. Bermingham in re-examination arose from the cross-examination at all.

42. In her submissions at the appeal hearing, counsel for the DPP claimed that the question arose out of this passage in the cross-examination of Dr. Bermingham;

“15. Q. And before I talk about the narrative given, I think that in terms of – your role is not to provide an opinion or to proffer any opinion upon the issue of consent. That’s obviously a matter for the –

A. No

Q. – jury?

A. I’m doing forensic –

Q. You’re simply to carry out forensic findings?

A. Yes.

Q. And in terms of what you had observed, in terms of the consistency, that’s consistent with penile-vaginal sexual activity?

A. Yes.”

43. It was argued that these questions and answers gave rise to two ambiguities. The first concerned the role of Dr. Bermingham, and in particular his ability to give evidence as to whether sexual activity was consensual. The second was the possibility that the jury might have understood his evidence (at line 25) as suggesting that the relevant sexual activity had been consensual.

44. Both of these arguments are entirely without foundation. Dr. Bermingham’s evidence as to his function was crystal clear. He accepted that his role was not to give evidence about the issue of consent. Whether he was right or wrong in that evidence, it was not equivocal or ambiguous. It is plain that counsel, far from re-examining the witness in order to clarify uncertain evidence, was in fact seeking to challenge the clear evidence that the witness had given in cross-examination. The fact that she did so by means of leading questions makes matters worse. The question she put (set out at paragraph 14 of this judgment) constituted a successful attempt to get the doctor to reverse his concession under cross-examination to the effect that he was not there to give evidence about consent.

45. The function of re-examination is not (except in truly unusual circumstances) to allow counsel to cross-examine their own witness. Yet this is what happened here. It should not have been permitted.

46. As to the second supposed ambiguity, the jury had just heard from Dr. Bermingham that he was not giving evidence on the issue of consent. It is therefore nothing short of fanciful to suggest that the jury might have thought that his one word reply at Line 25 meant that he was suggesting that his testimony was in any way supportive of an account of consensual sex.

47. While we have decided that the relevant evidence in re-examination should not have been either elicited or allowed, there remains the critical issue as to whether the appellant’s conviction should therefore be set aside. We have decided that it should not, for two reasons. Firstly, the impugned evidence simply repeated the evidence the witness had given at the conclusion of his direct evidence. Any reservations the jury might have had about this testimony (arising from the concession skilfully obtained by counsel in crossexamination) are unlikely to have been dispelled solely by the repetition of the evidence in re-examination. Secondly, counsel for the appellant was expressly invited by the trial judge to cross-examine Dr. Bermingham arising out of the relevant re-examination. He chose not to do so. This may well have been for good tactical reasons, but the fact remains that counsel did have the opportunity to tax the witness about the change in his evidence but chose not to do so.

48. We will therefore dismiss the appeal.